"Filing a notice of appeal in the Court of
Appeals or the Supreme Court may be accomplished by mail.� The date of filing
such notice shall be the date of mailing, provided it is mailed by
registered or certified mail and the party filing the notice has proof from the
post office of such mailing date.� Proof of mailing shall be certified by
the party filing the notice and filed thereafter with the court to which the
appeal is taken.� If the notice is received by the court on or before the date
by which such notice is required to be filed, the party filing the notice is
not required to file proof of mailing."

(Emphasis added.)� ORAP 1.35(1)(c) is in
accord with ORS 19.260(1) and provides:

"A person filing a notice of appeal,
petition for judicial review or petition under the original jurisdiction of the
Supreme Court may file by mail and the filing shall be complete on deposit in
the mail if mailed in accordance with ORS 19.260(1).� If the person
relies on the date of mailing as the date of filing under ORS 19.260(1), the
person shall certify the date of mailing and shall file the certificate,
together with acceptable proof from the post office of the date of mailing,
with the Administrator with proof of service on the parties to the appeal,
judicial review or original proceeding.� Acceptable proof from the post office
of the date of mailing shall be a receipt for certified or registered mail,
with the certified or registered mail number on the envelope or on the item
being mailed, with the date of mailing either stamped by the United States
Postal Service on the receipt or shown by a United States Postal Service
postage validated imprint on the envelope received by the Administrator."

(Emphasis added.)� Thus, if defendant
intended to rely on the date of mailing as the date of filing his notice of
appeal, he was required to mail the notice by registered or certified mail.�
Here, however, defendant mailed his notice of appeal by ordinary first class
mail.� Neither ORS 19.260(1) nor ORAP 1.35(1)(c) permits the court to treat the
date of mailing as the date on which defendant filed his notice of appeal.�

Finally, in the case
of incarcerated persons, ORAP 1.35(4) provides that

"[w]ith respect to a person confined in an institution
of confinement who files and serves a thing in the appellate court, the thing
shall be deemed filed in the appellate court and served on another person when
the original of the thing and the appropriate number of copies are delivered,
in a form suitable for mailing, to the person or place designated by the
institution for handling outgoing mail."

When defendant filed his notice of appeal,
he was incarcerated at the Oregon State Correctional Institution (OSCI).�
Assuming that defendant delivered his notice of appeal to the person or place
designated by OSCI for handling outgoing mail before July 28, 2006 -- that is,
the thirtieth day after the judgment at issue in this case was entered -- ORAP
1.35(4) would seemingly make the notice of appeal timely.

However, as set out
above, ORS 19.260(1) requires that, to take advantage of that statute, the
appealing party must mail the notice of appeal by registered or certified mail
and also must provide proof from the post office of the mailing date, certify
the proof of mailing, and file it with the court.� Defendant did not comply
with those requirements.� The question becomes:� Does the rule govern, or does
the statute?

The answer is
straightforward.� The Rules of Appellate Procedure were themselves created on
the basis of a statutory authorization.� See ORS 1.002(1) (providing in
part that "[t]he Chief Justice shall exercise administrative
authority and supervision over the courts of this state consistent with
applicable provisions of law and the Oregon Rules of Civil Procedure")
(emphasis added); ORS 2.120 ("The Supreme Court shall
have power to make and enforce all rules necessary for the prompt and orderly
dispatch of the business of the court, and the remanding of causes to the court
below.").� Because the rules are dependent on statutory authority, they
necessarily are subordinate to that authority.� It follows that, where there is
an inconsistency between a statute and a rule (as there is between ORS
19.260(1) and ORAP 1.35(4)), the statute must govern.� Defendant therefore may
not rely on ORAP 1.35(4) to establish that his appeal was timely.

Because defendant's
notice of appeal was not timely filed, neither the Court of Appeals nor this
court has jurisdiction over the trial court judgment challenged by defendant in
this case.� We therefore dismiss the state's petition for review in this court and
vacate the decision of the Court of Appeals.

The petition
for review is dismissed.� The decision of the Court of Appeals is vacated, and
the judgment of the circuit court is affirmed.